AU May Seek Deferral of Kenyatta ICC Case

ADDIS ABABA —
The chair of the African Union (AU) Commission signaled Tuesday she could ask the United Nations Security Council for a deferral of the International Criminal Court case against Kenya's leaders.

Diplomats with knowledge of the private meeting said that AU Commission Chair Nkosazana Dlamini-Zuma told a visiting Security Council delegation that the case against Kenyan President Uhuru Kenyatta and his deputy president, William Ruto, should be deferred for one year.

She cited the recent terrorist attack on Nairobi's Westgate shopping mall, saying the Kenyan leaders needed to focus their attention on the country's security and could not afford to be away at The Hague-based court for weeks at a time.

The African Union is scheduled to hold an extraordinary summit Thursday and Friday about the International Criminal Court. A formal deferral request to the council could come out of that session.

The U.N. Security Council has the power to issue what is known as an Article 16 deferral for cases at the International Criminal Court. But such a decision would require the agreement of all 15 council members.

The Kenyan president and his deputy have been charged with instigating post-election violence in 2007 and 2008 that killed more than 1,100 people and displaced more than half a million others.

Thirty-four African countries are members of the ICC, but lately some have criticized the court, saying it is politically driven and is unfairly targeting African leaders.

The head of Human Rights Watch's International Justice program, Richard Dicker, says African criticism of the court is unmerited.

“In five of the eight African states where the court is conducting investigations, it was the governments of those countries that invited the ICC to step in as a court of last resort. Two additional situations, Libya and Darfur, are in front of the ICC because of Security Council action, not because of initiative taken by the ICC. And it is only in one situation - that is Kenya - that the court prosecutor acted on his own initiative," said Dicker.

There had been talk of a mass withdrawal of African states from the court, but Dlamini-Zuma's suggestion of a deferral could indicate there is not the widespread support Kenya and others had hoped for to make an impact.

At the AU-U.N. meeting in Addis Ababa, diplomats said procedurally the Security Council would consider a deferral request if it is presented, but on the issue of the ICC the council is split.

While council members agree the court is an important tool to fight impunity, only six of the 15 Security Council member states are parties to the Rome Statute, the treaty which created the ICC. The United States is not among them, but President Barack Obama's administration has expressed a willingness to cooperate with the body.

The states' parties to the Rome Statute meet annually in New York. They will convene there next month, and some diplomats said that would be the proper forum for a discussion of the Kenyan case.